Of Priors and of Disconnects: How 'Chicago' Premises Risk Distortion

Abstract

This essay is a response to Professor Michelle E. Boardman’s piece, 127 Harv. L. Rev. 1967 (2014), reviewing my book, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law (Princeton 2013). I argue for the perhaps self-evident proposition that intellectual preconceptions (“priors”) can skew one’s understanding of a text, and in particular, that “Chicago” priors apparently make it difficult to parse critique. In this essay I describe “Chicago” priors, then use examples to argue that these priors led Boardman not only to misinterpret the major thrust of Boilerplate but also to misunderstand many of its details. I suggest that these priors, which are common in contemporary American legal thought, distort and obscure central issues relating to contemporary contract theory and practice.